Samia Wasif v The Secretary of State for The Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill |
| Judgment Date | 09 February 2016 |
| Neutral Citation | [2016] EWCA Civ 82 |
| Docket Number | Case Nos: C2/2014/3929 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 February 2016 |
[2016] EWCA Civ 82
Lord Dyson
( Master of the Rolls)
Lord Justice Underhill
and
Lord Justice Floyd
Case Nos: C2/2014/3929
C2/2015/1350
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Upper Tribunal (Immigration and Asylum Chamber)
Upper Tribunal Judge Eshun (3929)
Upper Tribunal Judge Macleman (1350)
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Fordham QC and Raza Halim (instructed by Duncan Lewis Solicitors) for Ms Wasif
Zane Malik (instructed by Seb Solicitors) for Mr Hossain
Deok Joo Rhee (instructed by Government Legal Department) for the Respondent
Hearing date: 7 December 2015
INTRODUCTION
This is the judgment of the Court. These two appeals have been listed together because they both raise an issue about the proper approach to be taken in considering whether to certify an application for permission to apply for judicial review as "totally without merit". That question was considered by this Court as recently as June 2014 in R (Grace) v Secretary of State for the Home Department [2014] EWCA Civ 1191, [2014] 1 WLR 3432; but it has continued to give rise to difficulties. We will address it first as a general matter before turning to the facts of the particular cases. All that it is necessary to say at this stage is that in both cases the Appellant sought permission from the Upper Tribunal to apply for judicial review of a decision of the Respondent to refuse them leave to remain in the UK; that that permission was refused on the papers; and that the Tribunal's orders concluded with a statement that the application was considered to be totally without merit, with the consequence (by reason of the rules to which we refer below) that they were not entitled to ask for their applications to be reconsidered at an oral hearing.
Ms Wasif was represented before us by Mr Michael Fordham QC and Mr Raza Halim. Mr Hossain was represented by Mr Zane Malik. The Respondent was represented by Ms Deok Joo Rhee.
THE CORRECT APPROACH TO TWM CERTIFICATION
THE RULES
By rule 54.12 of the Civil Procedure Rules a claimant whose application to the High Court for permission to apply for judicial review is refused (in whole or in part) on the papers is entitled to request that that decision be reconsidered at a hearing. Such a request is generally, though this is not the language of the rule, referred to as a renewal application.
However, paragraph (7) of the rule (introduced, with effect from 1 July 2013, by the Civil Procedure (Amendment no. 4) Rules 2013) provides that:
"Where the court refuses permission to proceed and records the fact that the application is totally without merit in accordance with rule 23.12, the claimant may not request that decision to be reconsidered at a hearing."
Rule 23.12, there referred to, reads:
"If the court dismisses an application (including an application for permission to appeal or for permission to apply for judicial review) and it considers that the application is totally without merit —
(a) the court's order must record that fact; and
(b) the court must at the same time consider whether it is appropriate to make a civil restraint order."
Following the transfer of the jurisdiction to hear "immigration judicial reviews" to the Upper Tribunal, an equivalent provision was inserted into the Upper Tribunal Rules 2008. The relevant parts of rule 30 (as amended by the Tribunal Procedure (Amendment no. 4) Rules 2013 and the Tribunal Procedure (Amendment) Rules 2014) read:
"(1) – (2) …
(3) Paragraph (4) applies where the Upper Tribunal, without a hearing —
(a) determines an application for permission to bring judicial review proceedings by —
(i) refusing permission or refusing to admit the late application, or
(ii) giving permission on limited grounds or subject to conditions; or
(b) …
(4) Subject to paragraph (4A), in the circumstances specified in paragraph (3) the applicant may apply for the decision to be reconsidered at a hearing.
(4A) Where the Upper Tribunal refuses permission to bring immigration judicial review proceedings or refuses to admit a late application for permission to bring such proceedings and considers the application to be totally without merit, it shall record that fact in its decision notice and, in those circumstances, the applicant may not request the decision to be reconsidered at a hearing.
(5) …"
We will refer to the recording by the Court or the Upper Tribunal of the fact that it considers an application for permission to apply for judicial review to be totally without merit as a "TWM certification".
We should also set out the terms of rules 52.15 and 52.15A, which apply to applications to this Court for permission to appeal against the refusal of permission to apply for judicial review by, respectively, the High Court and the Upper Tribunal. Rule 52.15 reads (so far as material):
"(1) Where permission to apply for judicial review has been refused at a hearing in the High Court, the person seeking that permission may apply to the Court of Appeal for permission to appeal.
(1A) Where permission to apply for judicial review of a decision of the Upper Tribunal has been refused by the High Court or where permission to apply for judicial review has been refused and recorded as totally without merit in accordance with rule 23.12 —
(a) the applicant may apply to the Court of Appeal for permission to appeal;
(b) the application will be determined on paper without an oral hearing.
(2) …
(3) On an application under paragraph ( 1) or (1A), the Court of Appeal may, instead of giving permission to appeal, give permission to apply for judicial review.
(4) Where the Court of Appeal gives permission to apply for judicial review in accordance with paragraph (3), the case will proceed in the High Court unless the Court of Appeal orders otherwise."
Rule 52.15A reads:
"(1) Where permission to bring judicial review proceedings has been refused by the Upper Tribunal and permission to appeal has been refused by the Upper Tribunal, an application for permission to appeal may be made to the Court of Appeal.
(2) Where an application for permission to bring judicial review proceedings has been recorded by the Upper Tribunal as being completely without merit and an application for permission to appeal is made to the Court of Appeal in accordance with paragraph (1) above, the application will be determined on paper without an oral hearing."
One consequence of those provisions — and specifically rules 52.15 (1A) (b) and 52.15A (2) — is that where a permission application has been certified as TWM a judge of this Court is precluded from directing that the application for permission to appeal be heard orally even if he or she believes that in the particular circumstances of the case a hearing would be desirable. It is surprising, and sometimes inconvenient, that the hands of a judge of this Court should be tied in this way by a decision taken at first instance, and we rather doubt whether this was the rule-makers' intention; but it has been decided that that is the effect of the rules — see GR (Albania) v Secretary of State for the Home Department [2013] EWCA Civ 1286.
We should mention for completeness that there is also a provision for TWM certification in relation to applications for permission to appeal. Rule 52.3 (4) provides that where an appeal court refuses permission to appeal on the papers the person seeking permission may request that the decision be reconsidered at a hearing. But that is subject to paragraph (4A), which provides that where an appeal court judge refuses permission to appeal without a hearing "and considers that the application is totally without merit, the judge may make an order that the person seeking permission may not request the decision to be reconsidered at a hearing". It will be noted that that differs from the rules relating to permission to apply for judicial review in that the loss of the right to a hearing is not an automatic consequence of the judge considering the application to be totally without merit but will follow only if the judge makes an order to that effect.
THE DECISION IN GRACE
In Grace a claimant of Jamaican nationality had been refused leave to remain in the UK without a right of appeal. She issued proceedings in the Administrative Court seeking judicial review of that decision. Kenneth Parker J refused permission to apply for judicial review and certified the application as TWM: accordingly her application could not be renewed at an oral hearing. Permission to appeal was given by this Court only for the purpose of providing guidance on the meaning of the phrase "totally without merit".
The claimant's case on the appeal was that an application should not be certified TWM for the purpose of CPR rule 54.12 (7) unless the claim was so hopeless or misconceived that a civil restraint order would be justified if such applications were persistently made: see para. 12 of the judgment of Maurice Kay LJ (p. 3436D). That submission was founded on the fact that the phrase "totally without merit" first, as Maurice Kay LJ put it at para. 8 (p. 3435 E-F), "came into the lexicon of civil procedure" in the context of civil restraint orders. The claimant also relied on observations by Laws LJ in Sengupta v Holmes [2002] EWCA Civ 1104 about the central role played by oral argument in the common law system: see para. 38 of his judgment in that case.
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